Saunders v. Fortier

Filing 12

REPORT AND RECOMMENDATION re 5 Motion for Summary Judgment, recommending the district judge should grant respondent's motion for summary judgment (doc. no. 5), deny the petition for a writ of habeas corpus (doc. no. 1), and decline to issue a certificate of appealability. Follow up on Objections to R&R on 3/2/2015. So Ordered by Magistrate Judge Andrea K. Johnstone.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dianna Saunders
v.

Civil No. 14-cv-016-PB

Joanne Fortier, Warden,
New Hampshire State Prison for Women
REPORT AND RECOMMENDATION
Before the court is respondent Warden Joanne Fortier’s
motion for summary judgment (doc. no. 5) on Dianna Saunders’s
petition for federal habeas relief under 28 U.S.C. § 2254.
Saunders has objected (doc. no. 8).
Background
Saunders was found guilty of a being an accomplice to first
degree murder, conspiracy to commit murder, theft by
unauthorized taking, and theft by misapplication of property,
following a jury trial in the New Hampshire Superior Court,
sitting at Strafford County (“SCSC”).

The New Hampshire Supreme

Court (“NHSC”) affirmed the conviction.
N.H. 342, 356, 55 A.3d 1014 (2012).

State v. Saunders, 164

The evidence before the

jury included both circumstantial evidence and direct evidence.
Saunders’s § 2254 petition asserts the same due process
challenge to a jury instruction that she preserved at trial and
litigated unsuccessfully in the NHSC:

Saunders’s conviction violated her right to due process
under the Fourteenth Amendment, in that the jury was
instructed that, in a case such as Saunders’s, “where both
direct and circumstantial evidence is offered for a
conviction, the evidence does not have to exclude all
rational conclusions other than the defendant’s guilt,”
which had the effect of reducing the state’s burden of
proof to less than “beyond a reasonable doubt.”
The NHSC concluded that, in general, the instruction was
improper, as it risked confusing a jury regarding the state’s
burden of proof.

See id., 164 N.H. at 353, 55 A.3d at 1022.

Turning to the case before it, however, the NHSC found that
there was no “reasonable likelihood” that the jury in Saunders’s
case understood the challenged instruction as allowing it to
convict Saunders based on proof less than “‘beyond a reasonable
doubt,’” and that the jury instruction did not “‘so infect[] the
entire trial that the resulting conviction violate[d] due
process,’” id. (quoting Victor v. Nebraska, 511 U.S. 1, 5
(1994), and Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
Respondent moves for summary judgment here, arguing that
the NHSC ruling was correct and consistent with federal
precedent.

Petitioner objects, asserting that the NHSC ruling

unreasonably applied United States Supreme Court precedents to
the facts of Saunders’s case, and that the jury was reasonably
likely to have interpreted the challenged instruction in
Saunders’s case to allow conviction on proof insufficient to
satisfy the “beyond a reasonable doubt” standard.
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Discussion
I.

Habeas Standard of Review
In a federal habeas action, relief is not available as to

any claim adjudicated on the merits in state court, unless the
state court’s legal conclusions or application of legal
standards to settled facts “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States.”

28 U.S.C. § 2254(d)(1); see also Robidoux

v. O’Brien, 643 F.3d 334, 338 (1st Cir. 2011).

A state court

decision is “contrary to” established federal law, either if it
applies a standard of substantive law that differs from, and
conflicts with, the standard prescribed by the United States
Supreme Court, or if it issues a different ruling than that
Court did, based on materially identical facts.
Taylor, 529 U.S. 362, 405-06 (2000).

See Williams v.

An “unreasonable

application” of federal law is not the same as an incorrect
application of such law.

See id. at 411.

The petitioner must

show “‘that the state court’s ruling on the claim . . . was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fair-minded disagreement.’”

Scoggins v. Hall, 765 F.3d 53, 57

(1st Cir. 2014) (quoting Harrington v. Richter, 562 U.S. 86,
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___, 131 S. Ct. 770, 786-87 (2011)), cert. denied, 83 U.S.L.W.
3581, 2015 WL 133436 (Jan. 12, 2015).
If the issue is one of fact, the habeas court must “apply a
presumption of correctness to the [state] court’s factual
findings and also examine whether there has been an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.”

John v. Russo, 561 F.3d 88, 92

(1st Cir. 2009); see also 28 U.S.C. § 2254(d)(2).

The

petitioner bears the burden of rebutting the presumption of
correctness of state court factual findings by clear and
convincing evidence.
II.

See 28 U.S.C. § 2254(e)(1).

Reasonable Doubt and Due Process
The “beyond a reasonable doubt standard is a requirement of

due process.”

Victor, 511 U.S. at 5.

When confronting a case

in which the petitioner contends that the jury instructions
lessened the state’s burden, resulting in a due process
violation, “[t]he constitutional question . . . is whether there
is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to
meet the Winship standard.”

Victor, 511 U.S. at 6 (citing In re

Winship, 397 U.S. 358 (1970) (government must prove every
element of a charged offense beyond a reasonable doubt)).

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In determining the effect of a challenged instruction on
the validity of a conviction, the Supreme Court applies the
“well-established proposition that a single instruction to a
jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.”
146-47.

Cupp, 414 U.S. at

“‘[T]aken as a whole, the instructions [must] correctly

convey the concept of reasonable doubt to the jury.’”

Victor,

511 U.S. at 5 (quoting Holland v. United States, 348 U.S. 121,
140 (1954)).
Saunders contends that the trial court’s instruction
regarding circumstantial and direct evidence lessened the
state’s burden of proof.

With respect to direct and

circumstantial evidence, the trial court instructed the jury as
follows:
[W]here both direct and circumstantial evidence is offered
for a conviction, the evidence does not have to exclude all
rational conclusions other than the defendant’s guilt.
The NHSC’s ruling in Saunders’s case cites the correct
legal standard for evaluating a challenged jury instruction
affecting whether the state has proven each element of the crime
beyond a reasonable doubt.

See Saunders, 164 N.H. at 353, 55

A.3d at 1022 (citing Victor, 511 U.S. at 5).

That ruling

further evaluates the challenged instruction in the context of
all of the instructions given to the jury in Saunders’s case,
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and not in isolation, in a manner that is consistent with
federal precedent, see Victor, 511 U.S. at 5; Cupp, 414 U.S. at
147.

The NHSC reasonably concluded that, because the jury in

Saunders’s trial heard the proper instruction on the state’s
burden to prove Saunders’s guilt beyond a reasonable doubt
“approximately twenty times” over the course of the trial,
Saunders, 164 N.H. at 353, 55 A.3d at 1022, it was not
reasonably likely that the jury understood the specific
instruction at issue to allow conviction on less than that which
due process requires.

The facts found by the NHSC and relied

upon by that court in rendering its decision -- including that
the jury heard a proper instruction on reasonable doubt
approximately twenty times -- are supported by the record.

Such

findings, which must be accepted by this court, see 28 U.S.C.
§ 2254(d)(2), provide a reasonable foundation for that court’s
finding of no due process violation.
Saunders argues that the number of times the jury heard the
correct reasonable doubt instruction is not a meaningful measure
of whether the jury was likely to have misapprehended the
state’s burden of proof.

Saunders emphasizes, in that regard,

that the jury received a written copy of the instructions after
hearing them, and further contends that the jury likely focused
on the challenged instruction because the case before it
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involved both circumstantial and direct evidence.

There is,

however, no record evidence of jury confusion as to any
instruction, including as to the meaning of “beyond a reasonable
doubt.”

The mere fact that the jury heard and then could read

the challenged instruction does not require a finding in
Saunders’s case that the jurors were reasonably likely to have
misconstrued the proper instructions they heard repeatedly at
trial and could read during their deliberations, as to whether
the state had proven each element of the charged offenses,
beyond a reasonable doubt.
In reiterating an argument on which she prevailed in the
NHSC – that the challenged instruction was improper and risked
jury confusion – and in seeking to prove a due process violation
in her case warranting relief on her § 2254 petition, Saunders
relies on Holland v. United States, 348 U.S. 121 (1954).

That

argument is unavailing, however, as the NHSC ruling is
consistent with, and not contrary to that Supreme Court case.
In Holland, the Court found that where the district court gave
the jury a proper reasonable doubt instruction, no additional
instruction was required concerning the state’s burden of proof
in a case based solely on circumstantial evidence.

Id. at 140.

Here, as Saunders states in objecting to the respondent’s
summary judgment motion, “the problem raised in Holland was
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turned on its head”; Saunders’s counsel at trial specifically
objected to the challenged instruction on the ground that it
risked confusing the jury, and did not seek out the same type of
instruction that the defendant sought in Holland.
Obj. to Mot. for Summ. Jt. (doc. no. 8), at 5.

Saunders’s

In finding a

potential for jury confusion when the jury hears an instruction
like that at issue in Saunders’s case, and in exercising its
supervisory authority as a prudential matter, to prevent trial
courts from issuing a similar instruction in future cases, the
NHSC’s ruling is entirely consistent with Holland.

Holland’s

facts are thus not materially the same as Saunders’s, and the
rulings in the two cases do not conflict.

That case does not

provide grounds for granting relief under 28 U.S.C. § 2254.
Saunders has not shown that the NHSC ruling at issue is
contrary to, or an unreasonable application of federal law as
determined by the Supreme Court.

Accordingly, the motion for

summary judgment (doc. no. 5) should be granted, and Saunders’s
petition (doc. no. 1) should be denied.
III. Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 2254
Rules”) require the court to “issue or deny a certificate of
appealability when it enters a final order adverse to the
party.”

§ 2254 Rule 11(a).

The court will issue the
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certificate “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2).

28 U.S.C.

Because Saunders has failed to make a substantial

showing of the denial of the constitutional right, the district
judge should decline to issue a certificate of appealability.
Conclusion
For the foregoing reasons, the district judge should grant
respondent’s motion for summary judgment (doc. no. 5), deny the
petition for a writ of habeas corpus (doc. no. 1), and decline
to issue a certificate of appealability.

Any objections to this

Report and Recommendation must be filed within fourteen days of
receipt of this notice.

See Fed. R. Civ. P. 72(b)(2).

Failure

to file objections within the specified time waives the right to
appeal the district court’s order.

See United States v. De

Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011); Sch. Union No. 37
v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010).

__________________________________
Andrea K. Johnstone
United States Magistrate Judge
February 11, 2015
cc:

Robert L. Sheketoff, Esq.
Jeffrey T. Karp, Esq.
Elizabeth C. Woodcock, Esq.

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